A proposed Florida law targets mugshot sites, but hits journalists’ First Amendment rights

“Even staunch free speech advocates recognize that these mugshot companies are, at the very least, distasteful. But, of course, the First Amendment does not allow the government to regulate content simply because it is distasteful.”

Editor’s note: We’ve talked before about the rise of (and backlash against) mugshot sites — those skeezy sites that get mugshots through public records, post them online for Google to find, and then take payments from the arrested to take them down. In court and in legislatures, efforts are afoot to go after these sites — but legitimate news organizations are threatened by overly broad approaches.

A new bill proposed by Florida legislator Carl Zimmermann seeks to end “mugshot websites,” a relatively new industry that exploits the marriage of the Internet and open records laws in order to make a profit. (See our prior posts on mugshot websites here, here, and here.) But while ending these sites may be a morally laudable goal, the proposed law is blatantly unconstitutional. Not only would it infringe upon the protected speech of these mugshot websites, it would also stifle a substantial amount of socially beneficial online speech, specifically crime reporting from legitimate news sources.

The proposed law, House Bill 677, would require “the operator of a website that contains the name and personal information, including any photograph or digital image,” of a person charged with a crime, within 15 days of receiving written notification that the person has been “acquitted or the charges are dropped or otherwise resolved without a conviction,” to remove the person’s name and personal information. Failure to comply would lead to a fine and, after 45 days, create “a presumption of defamation of character.” Under HB 677, a website operator may not ask for payment to remove content, but the bill would penalize websites regardless of whether they charged a fee — it targets content, not commercialization.

Mugshot websites — websites that obtain mug shots through freedom of information act requests (including mug shots of people who were never charged), post them online, and remove them only upon payment — have been offending American sensibilities since at least 2011. Unlike many organizations that file FOIA requests and provide the open records to the public, mugshot websites do not seek to provide a public service. Instead, these sites exploit laws created to protect open government and free speech for the same reason they exploit people trying to get their mugshots removed — to make a profit. Even staunch free speech advocates recognize that these mugshot companies are, at the very least, distasteful.

But, of course, the First Amendment does not allow the government to regulate content simply because it is distasteful. In United States v. Stevens, the Supreme Court rejected “a free-floating test for First Amendment coverage based on…balancing of relative social costs and benefits.” Courts have explained that society has to put up with thoughtless, insulting, and outrageous speech in order to “provide adequate breathing room for valuable, robust speech — the kind that enriches the marketplace of ideas, promotes self-government, and contributes to self-determination” (J.S. ex rel. Snyder v. Blue Mountain Sch. Dist., 2012).

Mugshot websites’ smarmy speech sits comfortably in the “breathing room” required by the Constitution. Even accepting the premise that Florida has a real, compelling interest in regulating mugshot websites, HB 677 cannot survive strict scrutiny as outlined in Stevens because it is not “narrowly tailored.” Government action to “punish the publication of truthful information seldom can satisfy constitutional standards” (Smith v. Daily Mail Pub. Co., 1979). And here, “where the government has made [mugshots] publicly available,” it would be “highly anomalous” to sanction a subsequent publisher (The Florida Star v. B.J.F., 1989). Indeed, when the government is the original publisher, “a less drastic means than punishing truthful publication almost always exists” (Florida Star).

Additionally, HB 677’s “presumption of defamation” would unconstitutionally shift the burdens of proof on issues of falsity and fault which the Supreme Court outlined in cases such as Philadelphia Newspapers v. Hepps and Gertz v. Robert Welch, Inc. The First Amendment does not prevent the government from punishing defamation, but it does require the party alleging defamation to provide evidence that a statement is not true. In Hepps, the Court held that it is “a constitutional requirement that the plaintiff bear the burden of showing falsity.” As the Court explained in Gertz, allowing publishers “to avoid liability only by proving the truth of all injurious statements [would] not accord adequate protection to First Amendment liberties.”

While mugshots could arguably constitute defamation if they are used to convey the false impression that someone who had merely been arrested had actually been convicted, the plaintiff must bear the burden of proving that defamation. In other words, there can be no “presumption of defamation” under the Constitution.

The bill is also unconstitutionally overbroad — and particularly disturbing — because of the large amount of productive speech it would penalize. Journalists are currently working to maintain their right to keep content online in the face of ever more common requests to “unpublish,” or remove content. HB 677 would eliminate that right. As operators of websites containing “the name and personal information, including any photograph or digital image,” of numerous people charged with crimes, news sources would be forced to remove content any time a subject was “acquitted or the charges…dropped or otherwise resolved without a conviction.” The bill also appears to apply to legal databases like Westlaw and LexisNexis, which store records of arrests and legal proceedings. Under the plain language of the statute, news providers would be subject to fines for every day they left stories on prominent criminal prosecutions on their websites. For example, The New York Times, The Washington Post, and The Miami Herald would all be penalized if they refused to take down stories documenting the Casey Anthony trial. After all, she was acquitted.

The text of the proposed bill.

In recent years, news organizations that publish content online have received more and more unpublishing requests. As people realize that their youthful transgressions, embarrassing public circumstances, and unpopular stances, once recorded, are “Googleable” forever, there is mounting public pressure for journalists to remove content or alter it to protect subjects’ identities. In fact, similar concerns about the permanency of online data prompted the European Union to create a “right to be forgotten” last year.

As Kathy English, the public editor of the Toronto Star, has written, “to simply remove published content from the archive diminishes transparency and trust with…readers and, in effect, erases history. This is not a practice engaged in by credible news organizations or in line with ethical journalism.” This is, she states, “an issue of integrity and credibility and reflects [journalists’] sense of responsibility to [their] readers, [their] community, and the historical record.”

Kelly McBride from Poynter has also stated that unpublishing should occur “only in extreme cases,” because unpublishing has “a destabilizing effect on the audience, which will place less trust in other information that you publish. If stuff just disappears, without a thorough explanation, people get very suspicious. So ultimately it’s bad for democracy and citizen participation in the marketplace of ideas.”

However, journalists have acknowledged that tough cases arise. For instance, many community papers publish police blotters and do not routinely follow-up on acquittals or dropped charges. This troubles many journalists, especially when subjects were minors at the time of arrest. Journalists have handled these situations in different ways. For example, many sites will update original articles to note that the person was never charged. According to a report by English (see p. 5), GateHouse Media at one point considered instituting a “sunset” policy pilot project under which the company would remove police blotter reports from the organization’s online archives six months after publication; the company’s current ethics guide on covering crime does not mention this policy, but prohibits posting police blotters online and states:

If someone is concerned about his/her arrest record coming up in a search engine, particularly because the charges in question have been dismissed or a court has found the person not guilty, he/she should provide the editor of the posting publication with copies of court documents describing the disposition. The editor will then add that disposition to the posted story.

However, news and information posted to the Web should come down when threats to life and limb are at stake, or in cases of identity theft.

Regardless of the way journalists choose to address these often difficult situations, this is a question of journalistic ethics. It is not an appropriate place for government intervention. As the Supreme Court held in Miami Herald Publishing Company v. Tornillo, a “responsible press is an undoubtedly desirable goal, but press responsibility is not mandated by the Constitution and like many other virtues it cannot be legislated.”

While some speakers may capitalize on open government and free speech laws, those laws preserve all citizens’ rights to speak freely and access accurate information about the world around them. If mugshot websites are so egregious that they truly demand state intervention — which seems unlikely — the state must tread carefully in finding ways to regulate them. Instead, HB 677 would casually stamp out a substantial amount of reporting and require journalists to alter the historical record.

Jillian Stonecipher is a student at Harvard Law School and an intern at the Digital Media Law Project. She served as editor-in-chief of the Daily Texan at the University of Texas from 2009-2010.

My beloved cat has just been run over last weekend. The driver was a drunk driver. it pains me that i couldn’t say goodbye to my cat. i hope they put that drunk driver’s mugshot on every website on the internet. i have no sympathy. Last weekend it was my cat, tomorrow it’s your child.

There is a very simple solution to the problem. Legislatures must outlaw charging fees to “unpublish” embarrassing or private information. Without a profit incentive, these mugshot sites will dry up and blow away. Legitimate news sites will not be impacted at all, because legitimate news sites do not charge to remove material from view.

Jarhead

Unpublishing is the best thing that has happened to those who wants legitimately published information removed from public view. The service is provided because of a need, a desire by people to unpublish. If you don’t like the service, think that it doesn’t exist and don’t pay for it. The notion that there’s a problem, that “these mugshots sites will dry up and blow away” is false. They have the right to publish. Period.

You are clearly missing the point. The point is coaxing people to give them cash with the indirect threat of continued public humiliation/libel/slander. That is extortion.

ek

Roadkill happens. Sorry about your cat, but it could’ve just as easily happened with a sober drive. Grow up

ek

You are very sensible and understand the real issue at hand. This isn’t a 1st Amendment issue. The issue is about using public information to extort money from people under the threat of public humiliation/libel/slander. That’s no different than threatening to push a child off a monkey bar gym at a public park claiming that it’s public property.

The people who end up in mug shots are not necessarily guilty of any crime. An arrest is not a conviction, however, the general public does construe this type of information as a legitimate background-check, which is creepy.

laraine

If you beloved your precious cat so much–why was it out in the street,unsupervised..

Carolyn Ford Burac

AGREED!

Lauren Vega

Publishing mugshots for the purpose of getting someone to pay does not get full First Amendment protection, if any. At best it is commercial speech and regulating it would simply need to pass intermediate scrutiny, not strict scrutiny.

Someone simply needs to file a RICO lawsuit against all who participate in this racket.

Brian

There is the possibility of harm.. People have the right to be free of continued harassment from an arrest when they are found not guilty. There is no reason to have it up there.

dje3

Jonathan,
Thank you the true issue is that the site is committing the crime of extortion. No actual media would ever allow nor accept money to “clean its files” regarding any newsworthy event or person.

The fact that on the site there is an offer to remove for money makes this legally considered extortion in every state. The PROBLEM is that the states themselves do not care about anyone that has an arrest record.

In essence, the state wants the penalty for their arrest and or conviction to be beyond the reach of the court, period. Follow the money and you will find that recidivism (a false concept to begin with) is highest when the person can not find empoyment at a living wage. These sites assure that is the case. This keeps the federal and state money circulating wihtin the system…release, arrest, release arrest …whether convicted or not.

I won’t even go into the difference between public knowledge and public domaine. No state that I knwo of has EVER released anyone’s personal property into public domaine and can NOT do so without specific due process regarding the siezure by the governement of that property.

This never happens in any arrest. Look it up if you like, every person’s likeness is in thier own copyright at all times. A sheriff or city police taking and releasing a picure of a live person without due process to sieze the copyright is illegal.

dje3

You miss the issue entirely. The issue is that no government agency can sieze personal property and place it into public domaine without due process. One’s picture is thier own copyright at all times unless released by them.
A sheriff or police department may have the right to take the picture for THEIR use, but can not place it in public domaine legally wihtout due process.
Also the actions of these sites are actually illegal, it is just that the government does NOT care about it because it was someone they arrested. It makes the government money not to care.

dje3

It can not be media protection because removing information from public knowledge for money iss adverse to media and the laws covering media and giving them rights.

If can not be fair use of public domain and certainly not fair use of anothers property.

THere is ONLY one legal definition for the use of another’s picture which was not obtained by specific due process (a sheriff taking a picture is not due process), that is extortion.

The question is why there have not been arrests for extortion in this matter?